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[2016] ZAGPJHC 271
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G v G (4846/2015) [2016] ZAGPJHC 271 (2 September 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 4846/2015
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
DATE:
2 SEPTEMBER 2016
In
the matter between
J.
G.
PLAINTIFF
and
J. G.
DEFENDANT
Matrimonial
action for a decree of divorce - matrimonial proprietary regime
governing marriage-separate adjudication of in terms
of rule 33(4) -
issue whether accrual system specified in chapter 1 of Act 88 of 1984
applied - antenuptial contract erroneously
failed to record whether
accrual system applied - evidence by the parties - opposing versions
- both parties honest and their evidence
reliable - test to be
applied - common continuing intention of the parties - absence of
acceptable motivation by plaintiff for
insisting on exclusion of
accrual - held that accrual system applied.
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
This
is an action for divorce. At the commencement of the trial and at the
instance of the parties I ordered that the proprietary
regime
governing the parties’ marriage should be determined first in
terms of rule 33(4). The nub of the issue between the
parties is the
following: the plaintiff contends that, as pleaded in Claim A of the
plaintiff’s particulars of claim, the
marriage was out of
community of property with the
exclusion
of the accrual system as opposed to that of the defendant that the
marriage regime was out of community of property
including
the accrual system.
[2]
The plaintiff’s cause of action, as pleaded in claim A, is for
rectification of the antenuptial contract, which is alleged
incorrectly describes the marriage regime as out of community of
property including the accrual system. The antenuptial contract
was
drawn up on the plaintiffs’ telephonic instructions and
subsequent confirmation in an email, by Geyser Attorneys in Pretoria.
A draft antenuptial contract was prepared by Geyser Attorneys,
delivered to and signed by both parties who were at the time residing
on a small holding near Sasolburg. The signed original was returned
to the attorneys for execution and registration in the Deeds
office
in Pretoria.
The
antenuptial contract
[3]
Before I deal with the evidence adduced at the trial it is necessary
to refer to the content of the antenuptial contract. It
is not in
dispute that the plaintiff instructed Geyser Attorneys to draft an
antenuptial contract
excluding
the accrual system. The
antenuptial contract that was signed and registered however does not
reflect that. Neither is it capable
of an interpretation providing
for a marriage out of community of property
including
the
accrual system.
[4]
The relevant parts of the antenuptial contract are reproduced in
their original form:
‘
ANTENUPTIAL
CONTRACT
with the
Application,
in terms of the
MATRIMONIAL PROPERTY ACT, 1984
’
…
And the appearers declared that
whereas a marriage has been agreed upon, and it is intended to be
solemnized between them, they
have agreed and now contract with each
other as follows:
1.
That
there shall be no community of property between them.
2.
That
there shall be no community of profit and loss between them.
3.
That
the assets of the parties or either of them, which are listed
hereunder, having the values shown, and all liabilities presently
associated therewith, or any other asset acquired by such a party by
virtue of his possession or former possession of such asset,
shall
not be taken into account as part of such party’s estate at
either the commencement or the dissolution of the marriage.
The assets of
J. G.
So to be excluded
are
NIL
and
The assets of
J. K.
So to be excluded
are
NIL’
[5] Ms Geyser, the sole
proprietor of Geyser Attorneys, testified and readily admitted that
the antenuptial contract was incorrect
which she ascribed to her
failure to peruse and check the document after it had been typed by
her typist, who had utilised a template.
Ms Geyser further confirmed
the plaintiff’s instructions to her to draft an antenuptial
contract in respect of an intended
marriage out of community of
property
excluding
the accrual system.
The issue and the onus
of proof
[6] Against this
background and premised on an admitted mistaken recordal of the
alleged oral agreement between the parties concerning
the proprietary
regime that was to govern their marriage, rectification of the
antenuptial contract is called for. The issue between
the parties
concerns the crisp question whether the marital property regime,
which it is common cause was to be out of property,
was either with
application or without application of the accrual system.
[7] A brief consideration
of the applicable legal principles is apposite. It was assumed by
counsel for both parties that the plaintiff
bears the onus of proving
the common continuing intention of the parties specifically pleaded
by him in order for an entitlement
to rectification to bring the
antenuptial contract into accord with that intention. That assumption
in my view is correct (
Odendaal v Odendaal
2002 (1) SA 763
(W)
para [2]). It is as well to emphasise that the common continuing
intention of the parties may be proved by antecedent oral
agreement
or, in the absence thereof, in some other manner provided such proof
is clear and convincing (
Meyer v Merchants’ Trust
1942
AD 244
at 253/258).
Factual
matrix
[8] The plaintiff and
defendant met each other some eight to ten months before they were
married to each other on 7 February 2004.
They started living
together in November 2003 when the defendant moved into his homestead
at Rapid Horns, a 7 hectare small holding
near Sasolburg. This was
the plaintiff’s first marriage and the defendant’s second
marriage, her husband from the first
marriage having passed away. Two
children were born from that marriage, both in their teens when she
married the plaintiff.
The plaintiff’s
version
[9] The plaintiff at the
time of the marriage practiced as a junior accountant for his own
account, having an office in Vaalpark
and a satellite office in
Rosebank, Johannesburg. He testified that he and his wife-to-be had
often discussed the property regime
to govern their intended
marriage. He estimated three of four such discussions having occurred
of which he was able to recall two:
one in the presence of a friend
at a coffee house in Cresta and the other during a consultation at
his Rosebank office with Ms
Van der Walt, who was their mutual
financial broker. Ms van der Walt referred them to Geyser Attorneys
who were unknown to both
of them. He phoned Ms Geyser and instructed
her to prepare an antenuptial contract excluding the accrual system.
On 16 January
2004 Ms Geyser in a letter transmitted by fax to the
plaintiff confirmed the telephonic instructions, to which was
attached a standard
form to be filled out by the plaintiff in regard
to the furnishing of personal and other details.
[10] The plaintiff duly
completed the form. It provides for an indication ‘MET OF
SONDER AANWAS’ in respect of which
the plaintiff inserted
‘WITHOUT’. On 28 January 2004 the plaintiff returned the
completed form to Geyser Attorneys
and in the fax cover sheet
requested ‘for the wedding… some kind of a letter as
proof that it is out of community
without accrual’. On the
morning of day before the wedding ceremony he received the draft
antenuptial contract from Geyser
Attorneys which they were required
to sign. He then phoned Ms Geyser on his cell phone and included the
defendant in the conversation
by activating the speaker phone
facility. He enquired from and confirmed with Ms Geyser whether the
document had correctly been
drawn up as it contained lingua he not
familiar with. She did so and they both signed the document which was
returned to the offices
of the attorneys.
[11] A further document
was introduced into evidence by the plaintiff while testifying, which
he had discovered a week or so prior
to the commencement of the
trial. It is a copy of an application in the name of the defendant,
on a standard form, for additional
overdraft facilities at Absa
Bank. It records a return of assets and liabilities as on 28
February 2010. Although the defendant
signed and initialled the four
page document it was filled out by the plaintiff. The requested
particulars comprise personal particulars
and detailed descriptions
of the defendant’s assets. The plaintiff highlighted paragraph
11 of the application where he had
indicated, under ‘Huwelikstaat’,
with a cross in the first square, that the marriage regime is out of
community of
property and with a further cross in the second square
below that, ‘ANC/sonder toevalling’. The plaintiff
contends
that the defendant, in appending her signature to the
document, unequivocally confirmed that the accrual system was not of
application
to their marital regime.
The defendant’s
version
[12] The defendant in
essence denies that the accrual system was excluded. By way of
background she described the relationship between
her and her
deceased husband concerning the running and management of their
businesses. He was a hands-on, astute business man
leaving her with
no less than six video shops, properties, trusts and interests in
close corporations. Although a woman of means
her involvement in
those businesses was limited to administrative functions and
financials, such as banking of innings and payment
of salaries to
staff. Her first marriage was out of community of property but with
the inclusion of the accrual system. She considered
that regime as
fair to both marital partners and added that she would never have
given the slightest consideration to marrying
without the application
of the accrual system. The defendant, as I understand the defendant’s
evidence, appears to have been
strong willed, assertive and
well-suited as far as finances and legal aspects relating to the
marriage were concerned. She trusted
him unreservedly right from the
outset.
[13] The defendant denied
that they had at any stage discussed the accrual system. In any
event, she added, she would not have discussed
a personal matter such
as accrual either in the presence of the plaintiff’s friend or
for that matter, Ms Van der Walt. Based
on her previous experience in
her first marriage and the absence of any reason for the accrual to
be excluded, she incredulously,
not ever having raised this aspect
with the plaintiff, believed that they would share in the accrual
from the date of marriage
onwards, while each would retain ownership
of their previously owned assets and other interests.
[14] The defendant in
particular denied having been included in the cell phone discussion
of the plaintiff with Ms Geyer. Her mindset
at that time, she
testified, was focussed on and fully occupied by the
finalisation of the vast array of hectic preparations
for the next
day’s wedding celebration and added thereto, the looming formal
solemnisation of the marriage which was to take
place later that
afternoon.
[15] As for the Absa
application, she admitted having signed the document and explained
that she did not read the contents thereof
on the assumption that her
husband, whom she regarded as being in control of matters of that
kind, had filled in the correct information.
[16]
Lastly, t
he
defendant testified that they had jointly purchased a coastal holiday
home in the name of a company, Emerald Sky (Pty) Ltd and
that she
actively became involved in the conversion of the five cottages
situated on the Rapid Horn property for hiring out, following
their
joint decision a few years after they were married, to derive some
income from them. She contributed to the maintenance,
upkeep and
expansion of the business, which she said she would not have
undertaken had she been aware that the accrual system was
not of
application. In addition she purchased furniture for use in the
cottages and incurred expenditure in the maintenance and
upkeep of
the gardens of the property in general. The plaintiff denied that the
defendant had purchased new furniture and that
the overflow furniture
from their homes was used for that purpose. The dispute aside, the
defendant’s involvement in the
business remains.
Discussion
[17]
As is apparent form the summary of the evidence the court is faced
with two mutually destructive versions. The
correct
approach to be adopted when dealing with mutually destructive
versions was succinctly set out in the case of
National
Employers General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) 440E-G, where Eksteen AJP said:
‘…
Where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not the court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the court will accept
his version as being probably
true. If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more
than they do the defendant, the plaintiff can only
succeed if the court nevertheless believes him and is satisfied that
his evidence
is true and that the defendant’s version is
false.’
[18] This approach was
approved by the Supreme Court of Appeal in
Stellenbosch Farmers
Winery Group Ltd and Another v Martell Et Cie and Others
2003 (1)
SA 11
(SCA) para [5], where it was held:
‘
On the
central issue, as to what the parties actually decided, there are two
irreconcilable versions. So too on a number of peripheral
areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving factual
disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’
candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness’ reliability will
depend, apart from the factors
mentioned under (a) (ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe
the event in question
and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis
and evaluation of
the probability or improbability of each party’s version on
each of the disputed issues. In the light of
its assessment of (a),
(b) and (c) the court will then, as a final step, determine whether
the party burdened with the onus of
proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one,
occurs when a court’s credibility
findings compel it in one
direction and its evaluation of the general probabilities in another.
The more convincing the former,
the less convincing will be the
latter. But when all factors are equipoised probabilities prevail.’
(See also
Moropane v
Southon
(755/12)
[2014] ZASCA 76
(29 May 2014) para [50])
[19] The principle is
therefore firmly established that when there are mutually destructive
versions before the court, the plaintiff’s
onus of proof can
only be discharged if he establishes his case on a preponderance of
probabilities. The corollary principle is
also established that the
requirement that a court has to be satisfied that the plaintiff’s
version is true and that of the
defendant false in order for the
plaintiff to succeed in discharging his onus of proof, is only
applicable in cases where there
are no probabilities one way or the
other (see
African Eagle Life Assurance Co Ltd v Cainer
1980
(2) SA 324
(W)).
[20]
Applied the above principles to the facts of the present matter it is
first necessary to consider the credibility of the plaintiff
and the
defendant. Both, in my view, were honest and their evidence credible.
I am unable to find nor was anything to the contrary
suggested in
argument, that they were untruthful in any respect. The plaintiff’s
version is corroborated by the documentary
evidence and also the
evidence of Ms Geyser. Ms Geyser, it must be remembered, testified as
to events having occurred some 14 years
ago with the obvious erosion
of memory. There exists no good reason not to accept that the
plaintiff in fact intended the exclusion
of the accrual system to
their marriage. But, the enquiry does not end there. The real
question concerns a determination of the
common continuing intention
of both parties. Put differently, did the plaintiff properly
communicate his intention to the defendant
and did the defendant
expressly agree with such intention in accordance with the pleaded
facts and testimony of the plaintiff.
[21]
The plaintiff’s evidence concerning his discussions with the
defendant leaves me with a measure of unease. For the plaintiff
this
was an uttermost important aspect in respect of which he, having been
paced in possession of the draft, sought and obtained
the assurance
of Ms Geyser that it correctly accords with his intention. But as for
the defendant, he was less meticulous: the
notion of discussing this
important aspect with the defendant in the presence of a friend and
later their broker, in view of the
fact that they were living
together, appears to me as improbable. His version concerning the
speaker cell phone call to Ms Geyser
is contradicted by Ms Geyser who
testified that she explained the different matrimonial regime options
to the plaintiff during
the first telephone call made by the
plaintiff. Ms Geyser testified that during one of the telephone calls
a third person was involved,
which she assumed was the defendant, but
she was unable to place it in its proper time sequence.
[22]
This brings me to an aspect that has caused me concern. The plaintiff
contends for a matrimonial proprietary regime which clearly
varies
the normal regime which is out of community of property including the
accrual system. Section 2 of the Act provides that
every marriage out
of community of property in terms of an antenuptial contact by which
community of property and profit and loss
are excluded,…is
subject to the accrual system specified in this chapter (Chapter 1),
except insofar as that system is
expressly excluded
by the
antenuptial contract’. [my emphasis]
[23]
Important and crucial for present purposes, is the requirement of
express agreement in regard to a deviation from the default
matrimonial property regime. Whether the parties in the present
matter expressly agreed on the exclusion of the accrual system,
requires me to carefully consider the evidence and in particular to
consider what the plaintiff’s motivation was for insisting
on
the exclusion of the accrual system. A sound and acceptable
motivation, having regard to the circumstances of the parties at
the
time, would obviously tend to strengthen the probabilities in favour
of exclusion (cf
Bath v Bath
(952/12) [2014] ZASCA (24 March
2014); 2014 JOL 31724
(SCA) para [13])
.
On this aspect the
plaintiff testified that he considered the exclusion of the accrual
system as necessary because ‘we both
had businesses’.
That plainly does not constitute sufficient reason. The plaintiff was
unable to recall the verbatim exchanges
during the discussions with
the defendant, but had this been the sum total conveyed by him to the
defendant as the reason for preferring
exclusion of the accrual
system, it is hardly surprising that she maintained the view that she
had.
[24]
The defendant’s failure to raise with the plaintiff the
matrimonial property regime which was to govern their marriage
was
much criticised by counsel for the plaintiff. I am unpersuaded that
in the circumstances I have referred to, any negative inference
against the defendant is warranted. The totality of the evidence, in
my view, falls short of establishing express consensus between
the
parties to exclude the accrual system. It follows that the plaintiff
has failed in discharging the onus of proving the agreement
relied
on.
Costs
[25]
In view of the nature of the dispute between the parties, the pending
divorce action and the credibility findings I have made,
I consider
it just and fair that the costs of this hearing should be costs on
the divorce action.
Order
[26]
For all the above reasons I make the following order:
1.
It
is declared that the matrimonial property regime governing the
marriage between the parties is out of community of property
excluding community of property and profit and loss, subject to the
accrual system specified in Chapter 1 of Act 88 of 1984.
2.
The
costs of this hearing shall be costs in the divorce action.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
ADV A FRIEDMAN
PLAINTIFF’S
ATTORNEYS
PILLAY ATTORNEYS
COUNSEL
FOR DEFENDANT
ADV A
JANSE VAN VUUREN
DEFENDANT’S
ATTORNEYS
LEAHY ATTORNEYS
DATE
OF HEARING
24, 25 AUGUST 2016
DATE
OF JUDGMENT
2
SEPTEMBER 2016